In The High Court of Tuvalu
At Funafuti
Civil Jurisdiction

HC. Civil case no 3/11

Between:

Lotoala Metia
Plaintiff

V

Taukalina Finikaso, Enele Sopoaga, Matia Toafa, Fauoa Maani,
Monise Laafai, Vete P Sakaio and Namoliki Neemia
Defendants

BEFORE THE CHIEF JUSTICE

T Malifa for plaintiff
J Udit for all defendants

Hearing: 19 November 2012
Judgment on quantum: 21 December 2012

Judgment

[1] This is an action for defamation. All the parties are Members of Parliament. I gave judgment on liability to the plaintiff against all defendants on 21 January 2012 but adjourned the hearing to the November sitting to allow the parties to file affidavits of any matters they considered relevant to the assessment of damages.

[2] Issue has been taken by Mr Udit, counsel for the defendants (who was not counsel at the trial in January) on the lack of cross-examination of the makers of the affidavits. He tells the Court that the contents of the plaintiff's affidavits are vigorously contested. None of the contents are admitted and he submits, correctly, that a court should not rely on affidavit evidence which includes issues of fact and credibility without having given the opposing party the opportunity to challenge it by cross examination. Unfortunately, it appears he has been poorly instructed as to the terms of the Order of 21 January 2012 and, possibly, even of the judgment as he also advised the Court that his intention was to cross-examine the plaintiff on liability despite the judgment already delivered.

[3] At the adjournment on 21 January 2012, the Court ordered;

 "I shall adjourn the case to the next sitting of the High Court and order that the parties shall provide affidavits of any matters they consider relevant to the assessment of damages. The plaintiff shall file and serve any such affidavits on or before 31 March 2012 and the defendants shall file and serve affidavits in reply on or before 31st of May 2012. Notice of intention to cross examine must be filed and served on or before 30 June 2012."

[4] Affidavits were provided by the plaintiff in good time but nothing was filed on behalf of the defendants until an affidavit by the first defendant dated 2 November 2012 was produced to the Court on 19 November 2012, the day fixed for the hearing on quantum. Defence counsel referred to a letter having been sent but no Notice was filed or served at any time. He sought to have the late affidavit admitted. In the absence of any request to cross examine, the plaintiff was not present and Mr Udit further applied to have the case adjourned to allow his attendance for cross examination. Mr Malifa, who was ready to present his submissions and, as soon became apparent, had prepared lengthy written submissions, opposed both the admission of the affidavit and the application to cross-examine the plaintiff. It was clear that no attempt had been made by the defence to obey the Order of 21 January 2012 and the Court refused both applications.

[5] Counsel for the defendants then explained that he was not ready to respond to the plaintiff's submissions orally and sought time to put in written submissions. Mr Malifa, whilst voicing concern at the further delay, accepted that course. That was a generous concession. The right of a man to clear his name by bringing an action for defamation becomes less effective as a remedy the longer the matter is delayed.

[6] The letters containing the defamatory statements were written and published in September 2010 and the writ filed in February 2011. The High Court in Tuvalu normally sits approximately every six months and so is important that, when cases are ready for hearing and a date is fixed, they should be heard. The case was delayed by defective pleadings until January 2012.

[7] Having obtained his judgment on liability, the plaintiff has had to wait until the November court sitting for an order on damages. It ill behoves the defence, having ignored the Court Order, failed to be ready for the hearing and then attempted to reopen issues already decided, to devote the first five pages of its written submissions to an attempt to re-argue the applications refused a few days earlier. Equally surprising was counsel's written submissions in mitigation of damages that this may have been a case of qualified privilege - a defence which was not pleaded – or that the defendants could have made the same untrue allegations with impunity in Parliament under the cloak of Parliamentary privilege or, as he suggested to the Court, that, as the defendants were Members of Parliament, these letters were covered by the same privilege.

[8] Mr Udit's submissions were filed with the Court in time but not served, as ordered, on Mr Malifa. Notwithstanding, counsel for the plaintiff has had an opportunity to see and to respond to them and I now have all submissions.

[9] In the plaintiff's affidavits he describes graphically the effect of the subsequent demonstration against him on Funafuti by some of the Nukufetau community, the scurrilous and personally offensive remarks on the placards displayed in the Talimalie Falekaupule and the decision by the members of the Falekaupule on Nukufetau to banish him. He describes those as having been the actions of the defendants and their supporters. Much of that evidence was aired in the case of Nukufetau Falekaupule v Metia, Case no. 2/12, in which it became clear those events were a reaction to his apparent disrespect of the Chiefs in disobeying their attempts to control how he should perform his duties as an elected Member of Parliament.

[10] The authorities make it clear that, when assessing damages in a defamation suit, the court may take into account actions by the defendants subsequent to the defamatory act itself. The plaintiff asks the Court to treat those events as clear and direct consequences of the defendants' defamation. I am not satisfied on the evidence before me that link has been established. However, I do consider the failure of the defendants to take any steps to discourage those demonstrations or to have the placards removed is a factor to be taken into account when considering their failure to apologise or otherwise mitigate the effect of the defamation.

[11] It is well established that the principal purpose of defamation actions is to vindicate the character of the person libelled rather than to punish the libeller. That vindication may be effected both by the finding of liability and the scale of the award of damages. Whilst the damages are compensatory and, in principle, follow the general rule of attempting to place the victim in the same position that he would have been had there been no defamation, placing a monetary value on a man's reputation or on the damage caused to it by the libel is always imprecise. In consequence, the courts have frequently assessed the amount of damages against the seriousness of the libel in order to emphasise or reinforce the vindication of the victim. It should be sufficient, as was stated by Lord Hailsham in Cassell v Broome [1972]AC 1027, that should the libel re-emerge at some future date, the plaintiff "must be able to point to a sum awarded … sufficient to convince a bystander of the baselessness of the charge". In Australia it was pointed out that "the sum must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation"; Carson v John Fairfax and Sons Ltd; [1993] 178 CLR 44. 

[12] In assessing the amount of compensation appropriate in a particular case the court will always consider the nature and seriousness of the libellous statements, the nature of the plaintiff's reputation and the extent to which the defamation will damage it, the manner and extent of the publication and the stress, hurt and humiliation those factors have caused the plaintiff. Many of those factors may be reduced if the defendants apologise or take other steps to correct the falsity of the statement or remedy the harm caused and, where that occurs, it will be reflected in a reduction in the damages. I find no such attempt in this case.

[13] Although the principle is compensation, where the circumstances of the defamation in terms of the manner in which it was made or where the nature of the defamatory statement and its publication was particularly damaging to the plaintiff's reputation or the damage was made worse by the defendants' lack of bona fides or conduct then or subsequently, the court may consider a higher award in the nature of aggravated damages. In such an assessment the court must bear in mind and assess the gravity of the libel; the more closely it touches the claimant's personal integrity and professional reputation, honour, courage, loyalty and similar attributes of his personality the more serious it is likely to be; John v MGN [1997] QB 586. 

[14] Having taken all these factors into consideration, it is common for the court to give a global figure of damages. However, where aggravated damages form an element of the general compensatory award, I consider it proper to indicate what proportion has been granted as aggravated damages.

[15] The plaintiff was an elected member of Parliament and clearly likely, at the time of these defamatory comments, to be given a ministerial appointment. The Court heard evidence of his position and standing and of the effect the libel had on them. Counsel for the defence has suggested that these comments must have caused little or no damage to his reputation because, despite them, he was appointed Minister of Finance and people must, in consequence, accept such an appointment carries an assumption of total integrity and honesty. I do not accept that is the correct approach. In defamation, actual damage does not have to be proved although I accept the evidence of the plaintiff of the distressing effect these false allegations had on him. The test is whether those statements tend to lower him in the estimation of others or to expose him to hatred, contempt or ridicule or to injure him in his office, trade or profession. I have found that they did have that tendency. These were allegations of dishonesty and unlawfulness, published with the intention of suggesting that, because of them, he was unfit to be a Member of Parliament. They were published with no regard to their possible truth and, at the trial, no attempt was made to produce evidence to justify them.

[16] As I have already stated in the judgment on liability, a person who seeks public office must accept that his conduct will, and should, always be subject to intense and even critical scrutiny. He must not be too sensitive to attacks on his integrity. I also acknowledged that all parties were elected representatives and this occurred during the intense and sometimes bitter negotiations to form a government which occur immediately after an election. However, I found that the passages to which I have referred went beyond any proper criticism. They were deeply damaging, untrue and clearly defamatory. 

[17] It is being suggested by the defence that the extent of the publication was limited to the small number of people to whom the two letters were addressed. That is a factor to take into account but I do not accept that, in this case, it accurately states the position. The letter of 25 November 2010 was addressed to three Members of Parliament but was copied to the Toeaina of each island except Funafuti. I am satisfied that was done in the clear expectation that those leaders would publish it further. The fifth paragraph was a tacit invitation to do that. "This is not a good situation which we do believe that the whole people in Tuvalu will not be happy that their leaders are doing such illegal and unlawful practice."

[18] Similarly, the letter of 26 September 2010 was addressed only to the high chiefs of the plaintiff's island and that of his erstwhile co-plaintiff but was copied by name to the chief of each of the other islands and, in paragraph 9, clearly invited them to seek a decision from their island communities on the basis of the dishonest and unlawful acts mentioned in the earlier paragraphs: "We do hope that your respective islands will make a decision in removing your MPs so that the investigation is being carried out on their cases."

[19] I am satisfied that both letters were signed and sent by the defendants with the intention and certain knowledge that the allegations would be published far more widely by the actual recipients. Although their defence was that they were made without malice and in the reasonable belief that they were true, they failed to produce any evidence whatsoever to support their truth. It is perfectly clear, and must have been apparent to the defendants, that their position as elected Members of Parliament gave these statements significantly increased credibility and were extremely likely to be disseminated widely as a direct consequence of that authorship alone.

[20] The effect of that allegation was aggravated by the failure of the defendants at any stage to withdraw it or apologise for it and, instead, to support the general attack on the plaintiff by the Nukufetau community which, although arising from a different foundation, clearly gained support from these allegations. That attitude of hostility and intransigence was maintained by the defendants throughout the trial and there is still no apparent wish to mitigate the effect of that defamation. That is a factor which is relevant in consideration both of whether damages should be aggravated and whether there should be an additional order of exemplary damages.

[21] Exemplary or punitive damages, which are solely to punish and deter the defendant in future, will only be ordered where he acted in contumelious disregard of the plaintiff's rights to the extent that his actions merit punishment. In the present case, whilst the actions of the defendants subsequent to the publication suggest malice, I am not satisfied that they formed a principal motive of those letters. In this the case, I am satisfied aggravated damages are merited but I do not consider it is an appropriate case for exemplary damages.

[22] The plaintiff has referred in his affidavits to expenditure to which he has been put in order to bring this action in court. Such matters may be considered as special damages but they must be pleaded and properly proved. I do not accept they have been so proved and, in fact, the majority do not fall within the category of special damages. 

[23] Both counsel have addressed the Court in their written submissions on the difficulty in determining the level of award. There are no cases in this jurisdiction to give guidance and comparisons with other countries where socio-economic conditions vary from one to the other and frequently differ profoundly from those Tuvalu give little assistance. Mr Udit has suggested that the Court should hear evidence in order to appreciate the unique circumstances of the citizens of Tuvalu. I accept the sense of such a suggestion but am not satisfied that is necessary or, indeed, practical. This Court has made a number of financial awards in previous cases based on the particular circumstances of the parties in those cases and has generally gained some experience of the differences between Tuvalu and its more developed neighbours as much as those between Ministers, Members of Parliament, public officers, government employees and the ordinary members of the public on Funafuti and on the outer islands.

[24] In this case all parties are members of Parliament. Their general status is known both in terms of income, responsibility and reputation. I have assessed the damages against that background. Inevitably it must be higher than in many other defamation cases brought between members of the general public. Put another way, it is measured in terms of seriousness by the matters set out in the preceding the paragraphs and measured in financial terms by the socio-economic standing of the parties.

[25] This was a serious libel. It was carried out by public figures who, recklessly and deliberately intended to damage the plaintiff's reputation to such an extent that he would be shunned by his Parliamentary colleagues on order to force him to resign from the position to which he had just been elected. Counsel for the defence has suggested that this is a proper case in which to award nominal damages and, if not, he suggests general damages should not, in the particular circumstances of this country, exceed $5000. I accept that nominal damages are sometimes awarded in defamation actions where the harm to the plaintiff's reputation is minimal. I regard this as being far from such a case. As has been stated, damages must be sufficient to vindicate and compensate the plaintiff and I do not accept such a sum could achieve that result.

[26] However, as has been stated in so many cases, placing a monetary value on the potential damage to a man's reputation is inevitably imprecise. I assess the necessary level of damages to ensure the plaintiff's reputation is vindicated in the eyes of reasonable members of the Tuvalu public would be $35,000. I am also satisfied that, for the reasons I have stated in this judgment, the status of the defendants when making these untrue assertions and the extra weight they knew that such status would give to those assertions and their attitude in failing in any way to lessen the harm they have caused to the plaintiff even though they must have known they could produce no evidence in support of their defence makes it appropriate to order a further sum of $15,000 aggravated damages.

[27] I see no reason why costs should not follow the event and so the plaintiff must have his costs. Both the plaintiff and the defendants have been represented at least for part of the proceeding by overseas counsel. Costs of such counsel will normally be awarded at a rate appropriate to Tuvalu unless the Court is satisfied there was a need for counsel to be brought in from abroad. Where that is suggested to be the case, it is wise to make application before the trial. The Court is, however, entitled to grant costs at a higher rate for overseas counsel if it considers it appropriate. This was an unusual case with little or no precedent in Tuvalu. I am satisfied that the instruction of overseas counsel was appropriate.

[28] Mr Malifa has put in a claim $40,000 for his professional fees, $550 consultation fees and $150 incidentals. The bill of costs is not properly itemised and appears still to include fees for the period in which counsel was also instructed by Mr Ielemia. Those costs must be removed. Until they are, it is not possible for the defendants to know the amount being claimed. I order, therefore, that the defendants shall pay the plaintiff's costs to be taxed if not agreed. 

[29] Counsel for the defendants has suggested that the defendants who are not from Nukufetau were less involved and should be less liable. It was never part of the defence and I do not accept the proposition. I have not accepted that the subsequent demonstrations against the plaintiff should form part of my assessment of damages for the defamatory statements and all the defendants took equal responsibility for the contents by signing both letters. Since then, they have equally failed to make any effort to correct or mitigate their involvement. 

[30] Thus the order of the Court is that the defendants shall, jointly and severally, pay general damages of $35,000 and aggravated damages of $15,000. That sum is immediately payable. They must also pay the plaintiffs costs to be taxed if not agreed within four months.

Gordon Ward
Chief Justice

Delivered on the 21st day of	December 2012 on Funafuti by the Senior Magistrate Afele Kitiona.